November 1, 2010

SB 1070 Hearing Analysis

A U.S. District Judge in July blocked parts of the controversial Senate Bill 1070 immigration law from taking effect. The injunction was challenged by Governor Jan Brewer, and the 9th Circuit Court of Appeals will hear the case. Arizona State University Law Professor Carissa Hessick will discuss the hearing and the legal challenges to SB 1070.

Ted Simons: Good evening, welcome to "Horizon". I'm Ted Simons. An injunction blocking parts of Arizona S.B. 1070 was a subject before a hearing of a three-judge hearing in the Ninth Circuit Court of Appeals this morning. I'm talking to a reporter who covered the hearing but first, excerpts from today's arguments.

Edwin Kneedler: It's every state -- if every state did this we would have a patchwork of laws as the decision which struck down a similar law and it's important as the Supreme Court recognized to recognize how a statute like this can effect lawful permanent residences and citizens because another factor is to respect the civil liberties and not subject people to interrogations and police surveillance and this statute because of the mandatory requirement based on minimal reasonable suspicion we think raises that's concern profoundly.

John Bouma: There's pure speculation, and again, talking about a facial challenge, but police officers are going to check out people they otherwise would not have checked out in their discretion. The idea of this statute is to prevent those people who have previously been subject to sanctuary city policies to make those checks. The third thing --

Ninth Circuit Court of Appeals: It does say reasonable attempt shall be made, in section two. It does say "shall."

Ted Simons: Earlier I spoke with Howard Fischer of Capitol Media Services. He's in San Francisco covering the hearing. Good to have you. Set the scene for us. What was it like? The politicians in attendance and those things –

Howard Fischer: Obviously, Governor Jan Brewer came up today and to the dismay of Terry Goddard who said she's just trying to grandstand. Russell Pearce as the Architect of the Bill. Tom Horne. Everybody had something to say and make sure they were there so that the lead attorneys on both sides represented their viewpoints.

Ted Simons: Give us the argument by the state against this injunction. What did you hear?

Howard Fischer: Essentially the state is saying this is supposed to be a facial challenge to the law and the only way a judge can enter an injunction if she concluded no way provisions could be enforced in a constitutional manner. The argument on the most controversial provision, with whether police can go ahead and have to check people they stop for illegal immigration status is that there are other ways the police do this. Sheriff's deputies and officers on their own and saying it's wrong for the Ninth Circuit to uphold the injunction based on the fact there's legitimate reasons to check immigration status and I think the judges bought that argument.

Ted Simons: And sounded like the state was saying our law is consistent with the intent of Congress not the administration, but Congress.

Howard Fischer: That didn't carry over to a couple of other argument. One of the enjoined provisions deals with the fact if you're trying to seek work in Arizona and not in this country legally, you could be arrested under state law violation. The three judges said, look, sorry, that's preempted by federal law and something we control as a federal government. The judges had a problem with if you're an illegal immigrant and don't possess certain documents that the state can arrest you and the federal judges said we don't care what the intent of congress is, this is the purview of the federal government.

Ted Simons: Ok. As far as the arguments by the feds, what are we hearing there? The judges had questions for them as well.

Howard Fischer: The judges questioned that section dealing with police being required to check the immigration status of those they've stopped. Edwin Needler, who is the Deputy Solicitor General, said police are not supposed to single out immigration for special treatment. And the judge says, why not. They can go ahead and require the police fingerprint those they stop. They can require to run them through a national criminal information check. Why not immigration? I think Needler was hard pressed to say this is solely the purview of the federal government. Judge Noonan said, look, if the federal government didn't want the states checking this, they can just go ahead and not respond to the request and Needler at any time have an answer for that.

Ted Simons: Sounds as if both sides were peppered with questions from the panel. Get an idea where they were leaning?

Howard Fischer: Well, I think that the judges are going to perhaps overturn Susan Bolton's injunction on the one that requires the police to check the illegal status of the immigrants. And, of course, Governor Brewer said she intends to take that to the U.S. Supreme Court.

Ted Simons: Last question-- We heard there were planned protests before today's hearing, maybe something afterwards. You were up there. What did you see?

Howard Fischer: It wasn't much. They did bus in some people from Phoenix and Los Angeles and some locals here in San Francisco. But it wasn't as big as protests we've seen in Phoenix and I think it has to do with the fact how many people wanted to drive or fly this many miles and couldn't get into the courthouse. This is a very small hearing room.

Ted Simons: Howie, thank you very much. We appreciate it.

Howard Fischer: You're very welcome.

Ted Simons: Arizona State University Law Professor, Carissa Hessick watched the hearings and she joins me.

Carissa Hessick: Thanks for having me.

Ted Simons: I noticed from the get-go when the state began speaking, it was if they were presenting something to a legislature, a jury, the government in the same boat. The judges said knock it off. Just tell us what you don't like about this particular decision.

Carissa Hessick: Exactly, almost as though the judges knew there were cameras and high-profile attendees and judges didn't want it to stray outside of the on the other hand purpose. They wanted -- ordinary purpose.

Ted Simons: We heard the phrase, facial challenge, what does that mean?

Carissa Hessick: There's two ways someone can say that there's a problem with the law. It's unconstitutional or in this case, preempted. I'll talk about constitutionality. If I had a law enforced against me and thought my rights were violated, I could bring an as applied challenge. Or try to bring a facial challenge, saying that the law itself is unconstitutional and the law has to be stricken out of the books. A facial challenge so to get rid of a law entirely, as opposed to saying it was applied incorrectly in a case.

Ted Simons: The state is saying because the administration, I.E., the government doesn't think it's right, doesn't mean it was not the intent of congress -- seems like a lot of the state's argument dealt with the intent of congress as opposed to the administration.

Carissa Hessick: That's right and I reread the briefs to the ninth circuit and that's a big chunk what they're saying. That the concept of preemption is what congress thinks and intends instead of what the administration thinks or the administration intends. The Presidential Administration. I think that the U.S. Government pushed back pretty hard on that idea and tried to point to different pieces of legislation where congress seemed to be saying although states have a role to play in immigration policy, that role is supposed to be a role conducted under the supervision of the administration. So the administration is supposed to set priorities.

Ted Simons: Section three, which was the requirement to carry registration documents, sounded as though -- especially when the government got up to present its side, the judge said, don't bother. We've got this figured out.

Carissa Hessick: Exactly, they seemed to be pretty intense in their questioning of Mr. Bouma, suggesting this type of law is foreclosed by an old case, Hines. That they don't need to hear from the government and they'd gotten the answers and really needed only to question the state.

Ted Simons: When the attorney said, yes, that decision was somehow divined out of clear air -- whatever term he used -- the judges said there's nothing we can do about it.

Carissa Hessick: The Ninth Circuit has to follow the rules set by the U.S. Supreme Court. If it was said that something is not permitted, the ninth circuit can't go against it.

Ted Simons: Okay, it sounds like Section 2, which is the mandatory status of termination on arrest. That one got a lot of play today.

Carissa Hessick: There was a lot of pushback at some point when Ed Needler was arguing on behalf the United States Government. He started out with the argument of statutory interpretation which points to the statute I mentioned where congress seemed to be saying that the state also to act under the supervision of the federal government. But then when he started talking about the effects of this law, the bench really started to push back. Every single judge at that point asked him skeptical questions.

Ted Simons: Now, again, the mandatory nature of the Arizona law was what the government was proposing and the judges -- one of the judges said I don't even understand your argument.

Carissa Hessick: Well, yeah -- well, the problem is that congress seems -- or said, frankly, if law enforcement have a question about -- law enforcement has a question that they're allowed to go to ICE and ask for them to verify immigration status. The panel was pushing -- that officers are allowed to have the discretion to do this and somehow if there's a statute telling them they have, that that changes the analysis.

Ted Simons: When the state was arguing, it seemed one of the judges kept mentioning the word we saw in the tape. "Shall." And yet the government comes back, another Judge, Noonan says, I don't understand what you're talking about.

Carissa Hessick: That's because the state of Arizona had two different arguments about the section about verifying immigration status. First, this isn't going to happen often under Arizona State Law and that's what you saw in the clip. The word "shall" is a legal term means you have to. And that's why they were giving him a hard time. That's the first argument they were making that this wasn't always going to happen but the second argument was so what if it does and that's where they were pushing Mr. Needler.

Ted Simons: Section six, warrantless arrests for removable offenses.

Carissa Hessick: That's where the judged of facial challenges comes into play, because in order to win a challenge saying that the whole law must be struck down they have to be able to argue in most or all circumstances the law can't be applied appropriately. It's either unconstitutional or preempted and the argument that Judge Bolton gave in her decision said that state officers aren't always going to be able to tell when someone is removable, they can be removed from the country, and this is a warrantless arrest section for removable offenses and the problem that the panel was pointing out, there are a lot of cases where law enforcement will be able to tell if someone is arrested and sentenced for murder, for example.

Ted Simons: The questions back to the state were how long do you hold them? How long do you decide you can hold them and at one point, the state said average about 11 minutes which didn't get a follow-up question.

Carissa Hessick: It doesn't and that might be because that's a factual question and we don't a fully developed factual record here. I'd be curious, if this -- when this does go back to Judge Bolton and she has to conduct the trial in this case, we might see a lot more information about that.

Ted Simons: Is that one that the judges had the most problem with?

Carissa Hessick: About the non-discretion checks of immigration status.

Ted Simons: The removable --

Carissa Hessick: The warrantless arrests, If they're going to reverse Judge Bolton, that's probably the most likely section, but also the mandatory checks of immigration status.

Ted Simons: As far as today's proceedings, the state saying things like reasonable suspicion is a time honored practice, that again, these are consistent with congressional objectives and that it's not reasonable for Arizona to stand by and watch federal laws not be enforced. How does that play?

Carissa Hessick: Well, that idea, the sort of overarching idea that the state can create its own laws if the federal government isn't enforcing them, that didn't play particularly well. You saw a judge draw an analogy to income taxes. What if someone wasn't paying, could the state of Arizona haul them into court? This broad principle about state enforcement, or state -- new state laws in the federal government isn't enforcing, didn't seem to get much traction.

Ted Simons: You see maybe a split decision on what stays and goes?

Carissa Hessick: I think that's possible but I also think it's important to note this will probably be a very narrow decision. They're not going to be talking about sweeping theories and state enforcement. It's going to be narrow.

Ted Simons: And it doesn't end here.

Carissa Hessick: No, no, it certainly doesn't. Whoever loses before the Ninth circuit or if there's a split decision and they reverse Judge Bolton in part and not in part, either side could try to get the preliminary I think an injunction heard or could try to go to U.S. Supreme Court and we have the entire case in front of Judge Bolton waiting for a full decision on the merit.

Ted Simons: Thank you for joining us.

U.S. Supreme Court: Arizona Tuition Tax Credits

Wednesday, November 3rd, the U.S. Supreme Court will hear Arizona Christian School Tuition Organization v. Winn. Goldwater Institute attorney Clint Bolick and Chris Thomas, an attorney for the Arizona School Boards Association, explain the legal arguments in this case that challenges the constitutionality of an Arizona law that provides tax credits to taxpayers who donate money to school tuition organizations (STOs).

Ted Simons: An opinion from the Ninth Circuit Court of Appeals in another case will be decided Wednesday by the U.S. Supreme Court. On cases challenging Arizona's Tuition Credit Law. A dollar for dollar donation for donations they make. These STOs use the money for grants and scholarships to send kids to private schools. Based on information that some STOs limit their scholarships to religious schools, the Ninth Circuit concluded that Arizona's Tax Credit Law is an unconstitutional endorsement of religion. Here to talk about that are Clint Bolick, an Attorney for the Goldwater Institute and President and Executive Director of the Arizona School Choice Trusts, an STO that intervened on behalf of the defendants in this case and Chris Thomas, General Council and Director of Legal Services are for the Arizona School Boards Associations which has supported legal challenges to the tax credit law.

Clint Bolick and Chris Thomas: Good to be here.

Ted Simons: I know that we've talked about this before on the program, regarding the constitutional nature of this program but there's a concern whether or not taxpayers even have the standing to take this thing and sue on behalf of this particular -- or against this particular idea. Do they have a standing?

Clint Bolick: I believe they do. That's well established in precedent. And what's really, really odd is that the Obama administration entered this case on the side of the private school scholarships. Which I'm really, really happy about, but then they took the additional step of staying that under the establishment clause, taxpayers do not have standing. That's a pretty bold position and one that's typically more conservative than the Obama Administration.

Ted Simons: The establishment clause, separation of church and state, what do you think about the standing for taxpayers here?

Chris Thomas: Well, we agree with Mr. Bolick on this one. We think there's standing here. If you have to make it particularized for a particular taxpayer in terms of showing personal injury, each time, I think in essence, you'll never get any kind of enforcement with regard to the Establishment Clause and going back to 1968 that the Establishment Clause is unique in terms of the First Amendment.

Ted Simons: Is this the kind of case that could look at standing and go in a direction no one expected?

Chris Thomas: That's certainly possible. I think most people watching this case carefully see that the court may be taking this opportunity to blow on the whole standing argument.

Clint Bolick: I agree with that. The establishment clause jurisprudence is a mess. It’s probably the biggest mess of any part of American law. It's the part that teals with whether it's permissible or not and the easiest way to get rid of that in one swell swoop, taxpayers cannot challenge these aid programs and so forth.

Ted Simons: Standing, not with standing, why is the program unconstitutional?

Chris Thomas: For a number of reasons, we don't think it meets the previous precedent of the Zellman Case, which was the case, I think 1999 or so, I believe, that was a case where vouchers were found to be constitutional but in that program in Cleveland, we thought it was unique. It was a failing school district and we have students that were poor, did not have means, and they had a targeted program that allowed them to attend either a private school or public school of their choosing. That was neutral with regard to religion and that was validated by the Supreme Court in a 5-4 decision. We think this one favors disproportionately private religious schools. The last count was 93% of these funds do benefit students who attend religious private schools.

Clint Bolick: I rarely make predictions about cases I'm involved with. We're going to win this one. Zellman upholding school vouchers, approves this but a case in 1983 was almost entirely on point involving deductions for private school tuition. They're 97% of the deductions were used for religious schools. And this case, was upheld, this program was upheld by the Arizona Supreme Court in a First Amendment challenge, the U.S. Supreme Court denied review then. It's only the Ninth Circuit that got this wrong. It's the only court that's struck down one of these kinds of programs and the U.S. Supreme Court will do what it usually does with Ninth Circuit decisions -- overturn it.

Ted Simons: Most of the scholarship monies seem to be going to students at religious schools. How is that not a separation of church and state?

Clint Bolick: The organization that I'm the chairman of, the Arizona School Choice Trust provides scholarships for any private school in the state, religious or non-religious, but the U.S. Supreme Court repeatedly said it's not where you add things up at the end of the day, it's who is making the decision. In this case, it's parents choosing to apply for scholarships and taxpayers choosing to donate their money, just like you get a tax donation if you donate to your church. That's 100% of that deduction goes your church. They're not looking at the math. They're looking at who is the decision maker.

Ted Simons: The idea that these are choices, parents are making these choice choices, how is that not --

Chris Thomas: There's a few things that parents can't choose. For instance, public schools are not part of this system. There's a Public School Tax Credit but that's to benefit extracurricular activities. $200 per individual taxpayer as opposed to $500. There's a big difference. In the Zellman situation, the court case on vouchers, those students could have gone to the public school of their choosing as well and which was -- which is different because they didn't have an open enrollment in Cleveland.

Clint Bolick: And no public schools were participating in the program so the only choices were private schools among which religious schools were overwhelmingly participating.

Ted Simons: If the public schools were participating and all things equal, would you still have a problem with this?

Chris Thomas: We have a problem in a state where we spend less money on public education than almost any other state. We think our Arizona constitution which has a high bar with regard to money going to private schools is correct, which is why our Arizona Supreme Court found the vouchers unconstitutional.

Clint Bolick: And our Arizona Supreme Court found this program permissible under the Arizona Constitution. If all public schools were doing this job, we probably wouldn't have a program like this. In my view, it's not a question of where a child is being educated, it's whether they're being educated.

Ted Simons: I'm hearing a lot of machinations -- but it's an unconstitutional endorsement of the state of religion when you get down to it?

Clint Bolicks: Then the G.I. bill is unconstitutional. You can use it for religious schools and even use it to study for the ministry. None of those things are unconstitutional and this is not unconstitutional because it's the individual who is choosing how to spend his or her resources and in the case of tax credits, the money never enters the treasury of state government, which is important.

Ted Simons: The idea it doesn't come directly from the treasury, how does that play?

Chris Thomas: The state is saying you can give a dollar to us or an organization of your choosing that meets this finite criteria. To argue it's not a tax dollar, maybe in a specific sense, but we think it's a subterfuge.

Ted Simons: Any thoughts, predictions on what the Supreme Court is going to do?

Chris Thomas: I agree with Clint in terms of the Ninth Circuit's track record but they had a good session last year. Who knows, maybe they'll come back again.

Clint Bolick: We'll win this case. The big question is the one we opened with -- will taxpayer standing be abolished? There's four conservative votes for that position. And I wonder if a liberal is going to listen to the Obama Administration and possibly get rid of that doctrine. Great discussion.